The National Labor Relations Board’s (NLRB) Acting General Counsel, Lafe Solomon, has been under the gun from members of Congress and others for his alleged ethical shortcomings. Now, new information has emerged that questions the decision that let Solomon off his most serious — and potentially criminal— alleged conduct.
Cause of Action, a nonpartisan watchdog group, has called for an investigation into the NLRB’s Office of Inspector General (OIG) for not making proper recommendations on misconduct by the Board, thanks in part to new information the group learned from the ethics officer assigned to one of Solomon’s cases. Cause of Action questions the IG’s decision to not pursue criminal or civil charges against Solomon in the Wal-Mart case, in which he was accused of violating federal law (18 U.S.C. Section 208) by participating in the case despite owning $15,000 or more in the company’s stock. It was only a week after a meeting about the Wal-Mart case that Solomon requested a waiver from the NLRB’s Ethics Office.
In reviewing the case, the IG concluded that Solomon’s actions in the meeting “were of substantial significance to the matter in that he made actual decisions regarding how to proceed with the Wal-Mart case that were not perfunctory, administrative, or peripheral.” The IG also noted that under current case law, “determining whether the prohibition on acting in matters involving financial conflicts of interest has been violated is a strict liability standard,” meaning that if there is a violation found, regardless of intent, the accused is responsible.
But a funny thing happened on the way to penalizing Solomon: the IG excused his conduct on the basis that there were “aggravating, extenuating, and mitigating circumstances,” shifting the blame to the NLRB’s ethics program for a process that was “dysfunctional and adversarial.”
Now, a sworn affidavit and memo from the ethics official assigned to Solomon’s case provides new insight into the flawed excusing of the General Counsel’s actions.
Gloria Joseph, the Designated Agency Ethics Official (DAEO) for Solomon’s case, gave her statement to Cause of Action in November of last year. The IG’s report shifted the blame to Joseph, saying that there was evidence of a “hostile work environment.” Why? Because Joseph sent Solomon an e-mail asking him when his term as acting general counsel would be over.
But Joseph also explained the most critical point–that even if her innocent e-mails were to be misconstrued as hostile, Solomon still suffered from a timeline problem: his request for waiver occurred after the alleged violation. Still, the IG blamed Solomon’s unexplained delay in requesting a waiver as “evidence of a complete lack of communication between” Solomon and the ethics officers.
Joseph tells Cause of Action that although her e-mails are used in the IG’s report and her alleged lack of communication with Solomon is one of the mitigating factors given for excusing his behavior, she was never interviewed as part of the investigation.
After hearing Joseph’s side of the story, Solomon’s escape from responsibility seems even more suspicious.
A violation of law under Title 18 Section 208, when a government official “participates personally and substantially” in certain cases, is punishable under Section 216. There are potential criminal penalties, ranging from 0-5 years imprisonment, as well as civil penalties as high as $50,000.